Bombay High Court
Bapurao Madhavrao Patil And ... vs The State Of Maharashtra And ... on 24 September, 2021
Bench: Mangesh S. Patil
912.WP. 8091.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8091 OF 2021
WITH
CIVIL APPLICATION NO.7981 OF 2021
IN
WRIT PETITION NO.8091 OF 2021
1. Bapurao S/o Madhavrao Patil,
Age : 55 years, Occu: Chairman,
R/o Murum, Tq. Omerga,
Dist. Osmanabad.
2. Basavraj S/o Mailarai Karbhari,
Age : 52 years, Occu: Vice Chairman,
R/o. Jewali, Tq. Lohara,
Dist. Osmanabad.
3. Basavraj S/o. Annarao Patil,
Age : 42 years, Occu: Member
R/o. Kothali, Tq. Omerga,
Dist. Osmanabad.
4. Govind S/o. Vitthal Patil,
Age : 47 years, Occu: Member
R/o. Kantekur, Tq. Omerga,
Dist. Osmanabad.
5. Mahadev S/o. Basavanappa Tengale,
Age : 53 years, Occu: Member
R/o. Jewali, Tq. Omerga,
Dist. Osmanabad.
6. Dagadu S/o. Sadhu Gaikwad,
Age : 53 years, Occu: Member
R/o. Kader, Tq. Omerga,
Dist. Osmanabad.
7. Dhanraj S/o. Govindrao Jadhav,
Age : 40 years, Occu: Member
R/o. Kader, Tq. Omerga,
Dist. Osmanabad.
8. Shridevi Manik Birajdar,
Age : 54 years, Occu: Member
R/o. Kesar Jawalga, Tq. Omerga,
Dist. Osmanabad.
9. Mangaltai W/o Revan Lamjane,
Age : 58 years, Occu: Member
R/o. Supatgaon, Tq. Omerga,
Dist. Osmanabad.
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912.WP. 8091.21.odt
10. Saybanna S/o. Shivayya Hirmukhe,
Age : 42 years, Occu: Member
R/o. Bhusani, Tq. Omerga,
Dist. Osmanabad.
11. Vijaykumar S/o. Sadashiv Sonkatle,
Age : 42 years, Occu: Member
R/o. Yenegur, Tq. Omerga,
Dist. Osmanabad.
12. Shyamsundar S/o. Shivbasappa Torkade,
Age : 50 years, Occu: Member
R/o. Jewali, Tq. Omerga,
Dist. Osmanabad.
13. Pramod S/o. Vishwanath Muralikar
Age : 46 years, Occu : Member
R/o. Murali, Tq. Omerga,
Dist. Osmanabad.
14. Chandba @ Chandpayasha Shukatali Shaikh
Age : 55 years, Occu: Member
R/o. Belamb, Tq. Omerga,
Dist. Osmanabad.
15. Dhanraj S/o. Kashinath Mangrule,
Age : 48 years, Occu: Member
R/o. Murum, Tq. Omerga,
Dist. Osmanabad.
16. Ayub Ibrahim Masuldar,
Age : 53 years, Occu : Member,
R/o. Murum, Tq. Omerga,
Dist. Osmanabad.
17. Chandrakant Shidaram Gaikwad,
Age : 48 years, Occu: Member
R/o. Murum, Tq. Omerga,
Dist. Osmanabad. ... PETITIONERS
VERSUS
1. The State of Maharashtra,
through its Secretary
Co-operation Marketing & Textiles
Department, Mantralaya Fort,
Mumbai - 32.
2. The Maharashtra State
Marketing Board,
Plot No.7, Market yard,
Gultekdi, Pune
through its- Executive Director.
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912.WP. 8091.21.odt
3. The District Deputy Registrar,
Co-operative Societies,
Osmanabad, Tq. & Dist. Osmanabad.
4. The Assistant Registrar,
Co-operative Societies,
Omerga, Tq. Omerga,
Dist. Osmanabad.
5. Mr. P.L. Shahapurkar [Administrator],
The Additional Assistant Registrar,
Co-operative Societies,
Omerga, Tq. Omerga,
Dist. Osmanabad.
6. The Agricultural Produce Market
Committee, Murum,
Tq. Omerga, Dist. Osmanabad. ... RESPONDENTS
...
Advocate for Petitioners : Ms. Pradnya S. Talekar i/b. Mr. L.C. Patil
Govt. Pleader for respondent Nos. 1, 3 and 4 : Mr. D.R. Kale
Advocate for the Applicant in CA : Mr. A.G. Talhar
Advocate for respondent No.2 : Mr. P.S. Dighe
Advocate for respondent No.5 : Mr. K.B. Jadhavar
Advocate for respondent No.6 : Mr. B.B Bhise h/f. Mr. N.R. Pawade
...
CORAM : MANGESH S. PATIL, J.
Reserved on : 31.08.2021
Pronounced on : 24.09.2021
JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. Mr. Kale
learned Government Pleader waives service for respondent Nos. 1, 3 and 4.
Mr. P.S. Dighe learned advocate for respondent No.2, Mr. K.B. Jadhavar
learned advocate for respondent No.5 as also learned advocate Mr. B.B.
Bhise holding for Mr. N.R. Pawade waive service for the respondent No.6. At
the request of the parties, the matter is heard finally at the stage of
admission.
912.WP. 8091.21.odt
2. The petitioners are questioning legality of the order passed by
the respondent No.3 District Deputy Registrar under Section 45(1) of the
Maharashtra Agricultural Produce Marketing (Development and Regulation)
Act, 1963 (herein after the Act) dated 26.07.2021 thereby superseding the
Market Committee at Murum, Tq. Omerga, District Osmanabad of which the
petitioners were the Chairman, Vice Chairman and Members.
3. The petitioners were elected on 19.02.2016 for a term of 5
years. By a specific order dated 17.03.2021 by invoking the powers under
Section 14(3) of the Act, the State Government extended its term for a
period of six months because of the pandemic. The intervenor who himself
is an agriculturist lodged several complaints with the State Government
complaining about the mismanagement of the respondent No.6 Market
Committee by the petitioners. The respondent No.3 District Deputy
Registrar issued a show cause notice to them on 13.05.2019. He also
constituted a three member committee to inquire into the allegations. Even
before any such inquiry was held the respondent No.3 District Deputy
Registrar issued a second show cause notice dated 09.09.2019. Some of the
petitioners responded by tendering explanation. After concluding the
hearing the respondent No.3 District Deputy Registrar forwarded a proposal
to the respondent No.2 which is a Board constituted under Section 39A for
consultation, as is contemplated under Section 44 of the Act. The
respondent No.2 Board by its communication dated 11.05.2021 conveyed its
approval. By the impugned order the respondent No.3 District Deputy
912.WP. 8091.21.odt
Registrar concluded that there were several misdeeds and violations of the
provisions of the Act and by the impugned order under Section 45(1)
directed suspension of the petitioners' Committee.
4. Following were the charges levelled against the petitioners
which were inquired into and have been held to be proved, in the impugned
order :
i) The petitioners' Committee failed to take appropriate steps for
preventing sale of agricultural produce below Minimum
Support Price (MSP) and thereby committed breach of the
provisions of Section 32(d) of the Act and Rule 94 (d)(2) of
the Rules framed thereunder.
ii) The petitioners' Committee failed to take effective steps to
prevent recovery of prohibited trade allowance and thereby
violated Section 39 of the Act and even failed to take steps
after they were put to notice as is required by Section 40 (1)
(e), about existence of such practice.
iii) The petitioners' committee failed to initiate action against the
erring agents who were indulging in illegal practice in
violation of the provisions of the Act and the Rules framed
thereunder and instead allowed the Secretary of the
respondent No.6 Market Committee to initiate such action
when he was not empowered to do so and thus were guilty of
violating the provisions of Section 8, Section 32 (a) of the Act
912.WP. 8091.21.odt
and Rule 94 (d)(3) of the Rules.
iv) The Petitioners' Committee failed to take disciplinary action
against the Secretary of the Respondent No.6 Committee in
spite of specific instructions having been issued to it under
Section 40 (1)(e).
v) Failing to take appropriate steps for implementation of a
Government Loan Scheme.
5. The learned advocate Ms. Talekar initiated her submission by
endeavoring to demonstrate as to how none of the charges were actually
proved and in the absence of which neither the respondent No.2 Board
could have accorded consent nor could the respondent No.3 District Deputy
Registrar have concluded about the charges have been established.
6. However, there is inherent limitation to undertake any scrutiny
of the disputed facts while exercising the Constitutional Powers of this
Court. This Court cannot go into the factual disputes and would only step in
to examine as to if there has been any illegality or otherwise in the decision
making process. This Court cannot sit in Appeal and undertake a scrutiny in
respect of illegality or otherwise of the impugned order based on the facts.
Precisely for this reason, the submission of the learned advocate Ms. Talekar
regarding proof or otherwise of the facts which form the basis for passing
the impugned order will have to be discarded.
7. Be that as it may, even if one undertakes a cursory scrutiny of
the reasons assigned in the impugned order passed under Section 45(1) of
912.WP. 8091.21.odt
the Act as can be appreciated from the explanation tendered by the
petitioners to the show cause notice, I find no hesitation even otherwise, in
subscribing to the conclusion drawn by the respondent No.3 District Deputy
Registrar about the charges have been duly established. The fact of sale of
agricultural produce below MSP was admitted albeit it was sought to be
explained by contending that there was no sufficient infrastructure
available for gradation of agricultural produce and consequentially an
agricultural produce which is of non FAQ quality was required to be traded
below MSP. It was also admitted by the petitioners that instead of the
Committee initiating any action against the agents, its Secretary initiated
such action without there being any power vested in him and the Committee
merely ratified such an action of suspending licences of the agents. Such a
stand insinuates that the petitioners' Committee itself did not invoke the
powers vested in it under Section 8 and 32A of the Act. It also clearly
demonstrates that the petitioners admitted the fact that the practice of
recovery of trade allowances by the agents was in vogue and action was
required to be initiated against the erring agents. Therefore the conclusions
drawn by the respondent No.3 District Deputy Registrar are unassailable.
These facts are sufficient to reach a plausible conclusion about the main
charges having been duly established.
8. The collective effect of such serious charges having been duly
proved also clearly brush aside the argument of learned advocate Ms.
Talekar regarding the impugned action being disproportionate to the
912.WP. 8091.21.odt
charges which have been duly proved, needs to be discarded. The learned
advocate has relied upon the decision in the case of Maharashtra Land
Development Corporation and Ors. Vs. State of Maharashtra; (2011) 15 SCC
616, but the petitioners are not entitled to reap any benefit from it.
9. The learned advocate Ms. Talekar would then submit that in the
absence of an inquiry under Section 40(1)(b) read with Rule 117 of the
Rules, non-compliance of direction under Section 40(1)(e) cannot be a
ground for invoking powers under Section 45(1). She would submit that
some of the charges deal with non-compliance of the direction under Section
40 (1)(e), however, no inquiry under Section 40(1)(b) was ever held. She
would further submit that though the respondent No.3 District Deputy
Registrar had directed an inquiry to be held he proceed with the inquiry
himself without waiting for any report by the Committee constituted by him.
Since no such direction as is required under Section 40 (1)(e) was issued on
the basis of any inquiry the petitioners could not have been held guilty. In
support of her submission she would place reliance on the decision of
Santosh Vs. District Deputy Registrar, Cooperative Societies and Ors.; 2020
SCC OnLine Bom 159.
10. Per contra, the learned Government Pleader and the learned
advocate Mr. Talhar for the Intervenor would submit that the provision of
Section 40(1)(b) and 40 (1)(e) are independent of each other and the
former does not regulate the latter. Non-compliance of direction under
Section 40(1)(e) in itself is sufficient to invoke the powers under Section
912.WP. 8091.21.odt
45(1). They would also submit that the decision in the case of Santosh Vs.
District Deputy Registrar (supra) is based on facts.
11. Section 40 is a part of Chapter VIII of the Act with a title
"Control". It reads thus :
"CHAPTER VIII
CONTROL
40. (1) The Director or any officer authorised by him by general or special
order in this behalf, may,--
(a) inspect or cause to be inspected the accounts and offices of a
Market Committee;
(b) hold inquiry into the affairs of a Market Committee;
(c) call for any return, statement, accounts or report which he may
think fit to require such Committee to furnish;
(d) require a Committee to take into consideration,--
(i) any objection which appears to him to exist to the doing of anything
which is about to be done or is being done by or on behalf of such
Committee; or
(ii) any information he is able to furnish and which appears to him to
necessitate the doing of a certain thing by such Committee, and to
make a written reply to him within a reasonable time stating its
reasons for doing, or not doing such thing;
(e) direct that anything which is about to be done or is being done
should not be done, pending consideration of the reply and
anything which should be done but is not being done within such
time as he may direct."
As the caption suggests, the provision lays down the powers
vested in the Director to carryout inspection, hold an inquiry, call for
returns, accounts, require a committee to take into consideration any
objection in respect of anything done or about to be done by the Committee
or to furnish information and to direct the Committee pending consideration
of the reply to do or not to do something. A minute perusal of these clauses
would clearly show that it is a list of powers to be exercised by the Director.
Needless to state that which of these powers to be exercised would depend
912.WP. 8091.21.odt
upon the facts and circumstances of an individual case. The power to hold
an inquiry into the affairs of the Managing Committee under Clause (b) is
independent of any of the other clauses. Clause (e) contemplates a situation
where a Director can issue a direction to the Committee awaiting a reply by
it. Therefore to my mind, power to issue direction under Clause (e) is de
hors and independent of the power to hold an inquiry under Clause (b) and
there is no co-relation between the two. The decision in the case of Santosh
Vs. District Deputy Registrar (supra) does not lay down any ratio and is
purely based on facts as obtaining the matter.
12. The learned advocate Ms. Talekar would then assail the
impugned order on the ground that there is a violation of the mandate of
the proviso to Section 45(1) of the Act as there has been no effective
consultation with the respondent No.2 Board. Relying upon the decision in
the case of State of Madhya Prades Vs. Sanjay Nagayach and Ors.; (2013) 7
SCC 25, she would submit that in order of there being an effective
consultation not only the show cause notice and supporting documents but
even the reply of the delinquent and also the proposed action has to be
placed before the Board. She would then submit that the respondent No.2
Board has not considered the show cause notice dated 13.05.2019 report of
the Secretary dated 21.05.2019 and 26.06.2019, reply of the Chairman of
the Committee, report of the Assistant Registrar, the replies of the
petitioners, the additional reply of the petitioners and several such facts and
circumstances in the absence of which there was non-compliance of the
912.WP. 8091.21.odt
mandate of proviso to Section 45(1). She would also rely upon the decision
in the case of Abhishek Shankarrao Thakare and Ors. Vs. District Deputy
Registrar, Cooperative Societies, Yavatmal ; 2014 SCC OnLine Bom 1226.
13. The learned Government Pleader and the learned advocate Mr.
Talhar would submit that all the necessary and relevant documents and facts
and circumstances were duly considered by the respondent No.2 Board. It
has given detailed reasons which weighed with it in according sanction. The
proviso to sub-section 1 of Section 45 merely requires a previous
consultation as distinguished from sanction. When it has reached a
subjective satisfaction, there was no further requirement of reaching any
independent conclusion regarding proof or otherwise of the allegations.
There was sufficient compliance with the mandate.
14. The importance of effective consultation contemplated by the
proviso to Section 45(1) need not be over emphasised and it would suffice
to refer to the decision in the case of State of Madhya Pradesh Vs. Sanjay
Nagayach (supra) particularly paragraph 42 which reads thus:
"42. Further, we are inclined to give the following general directions in
view of the mushrooming of cases in various Courts challenging
orders of supersession of elected Committees:
42.1. Supersession of an elected managing Committee/Board is an
exception and be resorted to only in exceptional circumstances
and normally elected body be allowed to complete the term for
which it is elected.
42.2. Elected Committee in office be not penalised for the short-comings
or illegalities committed by the previous Committee, unless there
is any deliberate inaction in rectifying the illegalities committed
by the previous committees.
42.3. Elected Committee in Office be given sufficient time, say at least
six months, to rectify the defects, if any, pointed out in the audit
912.WP. 8091.21.odt
report with regard to incidents which originated when the
previous committee was in office.
42.4. Registrar/Joint Registrar are legally obliged to comply with all the
statutory formalities, including consultation with the financing
banks/Controlling Banks etc. Only after getting their view, an
opinion be formed as to whether an elected Committee be ousted
or not.
42.5. Registrar/ Joint Registrar should always bear in mind the
consequences of an order of supersession which has the effect of
not only ousting the Board out of office, but also disqualify them
for standing for election in the succeeding elections.
Registrar/Joint Registrar therefore is duty bound to exercise his
powers bona fide and not on the dictation or direction of those
who are in power.
42.6. Registrar/Joint Registrar shall not act under political pressure or
influence and, if they do, be subjected to disciplinary proceedings
and be also held personally liable for the cost of the legal
proceedings.
42.7. Public money is not to be spent by the State Government or the
Registrar for unnecessary litigation involving disputes between
various factions in a co-operative society. Tax payers' money is not
expected to be spent for settling those disputes. If found necessary,
the same is to be spent from the funds available with the Bank
concerned."
Though these observations pertain to the provision of Madhya
Pradesh Cooperative Societies Act and the specific provision contained
therein, as has been rightly submitted by the learned advocate Ms. Talekar
the above observations would equally apply to the provisions under the Act.
15. So far as the matter in hand is concerned, the communication of
the respondent No.2 Board dated 11.05.2021 (Exhibit-E) is annexed with
the minutes of the board meeting dated 08.04.2021. It was specifically
noted that the Board had examined the charges, scrutinized the petitioners
reply and after recording specific observation qua each of the charges had
undertaken elaborate discussion while concluding that prima facie there was
912.WP. 8091.21.odt
substance in the allegations. As can be noticed from the references in the
communication dated 11.05.2021, the respondent No.2 Board had also seen
the letters of the respondent No.3 District Deputy Registrar dated
03.03.2020 and 09.09.2019.
16. Independently, as is mentioned herein above, when most of the
allegations stood admitted by the petitioners in their replies, the decision of
the respondent No.2 Board would be justified even on facts. If the stand of
the petitioners constitutes admission of the most of the charges albeit with
same riders in the form of some explanation, to my mind, it cannot be said
that there was no effective consultation. Therefore they are not entitled to
claim any benefit from the decision in the case of State of Madhya Pradesh
Vs. Sanjay Nagayach (supra). The submission of the learned advocate that
there was no effective consultation is liable to be discarded.
17. In this context it would also be fruitful to refer to the decision of
this Court in the case of Tukaram Narayanrao Khandebharad Vs. State of
Maharashtra and Ors.; 1998 (1) Mh.L.J. 679. Bearing in mind the wording
of the proviso to Section 45(1) it is quite apparent that it merely use the
word 'consult' as distinguished from 'sanction' or even 'approve'. Meaning
thereby that though the consultation has to be meaningful and effective, a
District Deputy Registrar is not bound by the decision of the Board. This is
what has been precisely held by this Court in the case of Tukaram
Narayanrao Khandebharad (supra) in paragraph No.10 which read thus :
912.WP. 8091.21.odt
10. However, we would approach the problem from other angle
also. Was it really necessary for the State Marketing Board to
give its opinion one way or the other? We feel that the Board
was free to express its opinion in any manner. The Board could
have even expressed its opposition to the proposal of
supersession. Question is, could such refusal be said to be fatal
to the ultimate decision on the part of the DDR? Our earnest
opinion is that even if the Board had refused to agree with the
proposal of supersession, the DDR could still have proceeded
ahead with the action, the only requirement being that it had to
be shown that the DDR had taken into consideration the opinion
of the Board, a body which was bound to be consulted. If the
DDR had shown that he was alive to the contrary opinion on the
part of the State Marketing Board, and in spite of the same, had
decided to proceed, in our view, the process of consultation
would still have been complete.
If such is the state of law, it is not expected of the Board to
reach some conclusion either way. It would suffice for the compliance of the
consultation being effected that the Board takes a conscious decision by
going through all the relevant record. As is demonstrated herein above
when all the relevant record was before the Board which in its meeting
discussed the issue and forwarded the communication to the respondent
No.3 District Deputy Registrar, it cannot be said that there was no effective
consultation.
18. The learned advocate Ms. Talekar would then submit that
inspection of the office of work of the Market Committee is a sine qua non
for initiating the action under Section 45(1) and there was no such
inspection preceded the impugned action.
19. Though attractive, the submission has no bearing on the matter
in hand for the simple reason that, to repeat, most of the allegations were
912.WP. 8091.21.odt
expressly admitted by the petitioners. Admittedly the agricultural produce
was allowed to be traded below MSP, unauthorized trade allowance were
allowed to be charged/recovered. No action was initiated against the agents
by the Committee. Instead of the Committee its Secretary issued order
suspending licences of the agents illegally and petitioners' Committee
merely sought to ratify it and which action, admittedly, has been struck
down by this Court in several petitions by the agents whose licences were so
suspended/cancelled. Meaning thereby that admittedly the petitioners'
Committee had not undertaken any exercise of the powers vested in them to
regulate and monitor trade of agricultural produce. If, such is the state of
affairs, when even without there being any inspection of the office, the
petitioners themselves admitted major allegations, no fault can be found
with the respondent No.3 District Deputy Registrar in not waiting for the
report of the Committee constituted by him to inquire into the allegations.
The question here is as to the manner in which the respondent No.3 District
Deputy Registrar has invoked the powers under Section 45(1) of the Act. If
even without holding any preliminary inquiry he could reach a conclusion
about the charges/allegations having been duly established, the submission
of the learned advocate Ms. Talekar is not sustainable.
20. Again, the submission of the learned advocate Ms. Talekar that
there was violation of principles of natural justice in as much as the
additional replies tendered by the petitioners were not forwarded to the
respondent No.2 Board is not sustainable. When, admittedly, the initial
912.WP. 8091.21.odt
replies tendered by the petitioners were already forwarded to the
respondent No.2 Board and referred to by it before granting approval, it
cannot be said that there is violation of principles of natural justice.
21. The learned advocate Ms. Talekar would then assail the action
on the ground that it is politically motivated and mala fide, having been
taken out at the behest of the intervenor.
22. In my considered view when it comes to the functioning of the
Managing Committee constituted under the Act which is promulgated for
Development and Regulation of the agricultural produce marketing,
irrespective of the motive of the individuals it is the substance which should
weigh with the authorities constituted under the Act. If the charges are
grave and stand duly established, the motive of the person making a
grievance is inconsequential. As is demonstrated herein above where there
is substance in the allegations against the petitioners, the impugned order
cannot be assailed only on the ground of the allegations of mala fides and
motives attribute to the intervenor.
23. In view of above, there is no merit in the Writ Petition. It is
dismissed. The Rule is discharged. The Civil Application No.7981/2021 is
disposed of.
(MANGESH S. PATIL, J.)
habeeb
